Is a Fence a “Permanent” or “Continuing” Encroachment?

Whether a boundary fence is a “permanent” or “continuing” encroachment is the subject of a recent Court of Appeal Ruling.  (See Madani v. Rabinowitz, 2020 Cal. App. LEXIS 149)

Ali Madani sued his next-door neighbor, Michael Rabinowitz.  Madani brought trespass and nuisance claims, seeking to remove a portion of Rabinowitz’s fence, which encroached on Madani’s property. Madani also sought to enjoin Rabinowitz from continuing to park old, inoperable cars on a driveway Madani owned, and to collect damages from Rabinowitz for the latter’s past use of the driveway for that purpose.

Rabinowitz raised a statute of limitations defense. Whether a trespass or nuisance claim for an encroachment is barred by the statute of limitations turns on whether the encroachment is continuing or permanent.

Whether a trespass or nuisance claim is barred by the statute of limitations turns on whether the wrongdoing is permanent or continuing in nature. (See Starrh & Starrh Cotton Growers v. Aera Energy LLC (2007) 153 Cal.App.4th 583, 592.)

• For permanent encroachments, the three-year statute of limitations begins to run on the date the encroachment began, and bars all claims brought after its passage.
• For continuing encroachments, a plaintiff may assert a claim even if the encroachment began outside the limitations period, but is limited to recovering damages incurred in the preceding three-year period.

The trial court concluded the fence and parked cars were continuing encroachments and ordered their removal.  Thus, there was not a statute of limitations problem, even though the fence was built in 1979 (and later replaced in 2015).  The trial court also concluded Madani failed to prove his damages claim – finding that the parking of the cars on the driveway was not akin to storing them in a commercial lot.

Madani appealed.  The Court of Appeal affirmed the trial court, finding:

Because boundary fences and walls often are constructed without reference to boundary line surveys, disputes between neighbors about resulting encroachments are not uncommon. We found no published California case resolving statute of limitations issues involving this problem, however. We publish with the hope of heading off further litigation on the topic.